EXHIBIT 10.23
COLLABORATIVE AGREEMENT
THIS COLLABORATIVE AGREEMENT is made this 25 day of October, 1998, by and
between SURGICAL SAFETY PRODUCTS, INC., a New York corporation, with its
principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASSP@)
and UNITED STATES SURGICAL CORPORATION, a Delaware corporation, with its
registered office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (AUSSC@). :
WHEREAS, USSC is a diversified surgical products company and a market
leader in surgical stapling, laparoscopy and instrumentation for minimally
invasive breast biopsy, and is rapidly penetrating the worldwide markets for
sutures and other products; and
WHEREAS, SSP engages, among other fields of business, in the design of
computer software for the medical industry, including the OASIS information
system, a proprietary hospital-based information system network to report and
track occupational safety emergencies such as needlesticks and other reportable
cases to OSHA independent from other hospital computer systems and software
(AOASIS@); and
WHEREAS, OASIS provides proprietary programs, health/risk management
programs and medical products inservices through Touch Screen user interfaces at
OASIS terminals in hospitals; and
WHEREAS, the parties wish to enter into a Collaborative Agreement with the
intention of building and growing the current relationship to a long term
arrangement for the marketing of OASIS by placing certain OASIS units at
designated USSC locations and, pending an initial trial period, for placement of
additional OASIS units in additional locations or for USSC to purchase units
from SSP for placement.
NOW THEREFORE, in consideration of the mutual promises herein contained
herein, as well as other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
TERM
1. The term of this Agreement shall be for a period of three (3) years (the
ATerm@); which term may be terminated at the end of a nine (9) month period
which period shall commence at the earlier of either: (i) six (6) months from
the date of this Agreement, or (ii) on the date of Afirst installation at the
last location@ (as defined herein) (the AReduced Term@). SSP shall have the
right to terminate this Agreement if USSC has not designated ten (10) locations
(as such are defined in Article 2(b)) at the termination of the Reduced Term. In
the event USSC has designated ten (10) locations within the period of the
Reduced Term, USSC shall have the right to terminate this Agreement at the end
of the Reduced Term by giving SSP written notice within sixty (60) days of the
expiration of the Reduced Term. For purposes of this Agreement, the Afirst
installation at the last location@ shall mean the date on which the first OASIS
system unit, as defined in Article 2, is released to the last facility pursuant
to the Installation Schedule which is annexed hereto and made a part hereof as
Schedule 1.
2. In the event this Agreement is terminated at the end of the Reduced Term
by either SSP or USSC, the termination provisions of this Agreement shall take
effect immediately.
ARTICLE 2
INITIAL EQUIPMENT LEASED
1. During the Reduced Term, SSP hereby leases to USSC and USSC hereby
leases and hires from SSP one or more units containing the initial equipment,
software and other property (individually a AUnit@ and collectively the AUnits@)
described in Schedule 2 which is annexed hereto and made a part hereof.
2. During the Reduced Term, the Units leased, as described in Schedule 2
annexed, shall be placed in not less than ten (10) locations, each of which
location shall be a tertiary care facility containing one hundred (100) or more
beds (individually the ALocations" and collectively, the Alocations@).
3. USSC shall have the right to lease one or more Units for each Location.
4. During the Term of this Agreement, SSP shall have the right to solicit
other departments within a Location for sale or lease of OASIS systems (ASSP=s
Business@).
5. During the Reduced Term of this Agreement, USSC shall be responsible for
and bear all costs incurred relating to the delivery and installation of the
Units. SSP shall be responsible for arranging for the supply, delivery and the
integration of the Units. SSP agrees to commence installation of each Unit
within two (2) to five (5) weeks after a Location has been designated by USSC.
ARTICLE 3
ADDITIONAL EQUIPMENT LEASED
1. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term,
SSP agrees to lease to and USSC agrees to lease and hire such additional Unit or
Units as set forth in Schedule 2A et. seq. for place at one or more of the
Locations, which Schedule or Schedules shall be annexed hereto and made a part
hereof as if made at the time of execution of this Agreement.
2. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term,
USSC shall be responsible for and bear all costs incurred relating to the
delivery and installation of the Units. SSP shall be responsible for arranging
for the supply, delivery and the integration of the Units. SSP agrees to
commence installation of each Unit within two (2) to five (5) weeks after a
Location has been signed.
ARTICLE 4
USSC INSERVICE MODULES
1. During the Reduced Term, each Unit shall be formatted with as many
inservice modules as requested by USSC for USSC products. As to the first ten
(10) inservice modules for each of the following categories: Feature Modules,
Major Modules and Basic Modules, USSC shall pay all production and modification
fees in accordance with Schedule 3 annexed hereto and made a part hereof, but
shall not be responsible for any monthly fee for such modules on all of the
Units at a Location. In addition to rent required for leasing of the Units as
provided herein, for all inservice modules for USSC products above the ten (10)
inservice modules in three categories, USSC shall pay the monthly fees set forth
in such Schedule 3 for such modules on all of the Units at a Location.
2. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term,
As to the first ten (10) inservice modules for each of the following categories:
Feature Modules, Major Modules and Basic Modules, USSC shall pay all production
and modification fees in accordance with Schedule 3 annexed hereto and made a
part hereof, and shall pay a monthly fee equal to the current monthly rates
charged by SSP to its customers for such modules on all of the Units at a
Location. In addition to rent required for leasing of the Units as provided
herein, for all inservice modules for USSC products above the ten (10) inservice
modules in three categories, USSC shall pay the monthly fees set forth in such
Schedule 3 for such modules on all of the Units at a Location.
ARTICLE 5
UNIT PLACEMENT
Each Unit subject to this Agreement, shall be placed in a Location chosen
by USSC. All Locations for placement must meet with SSP's written approval,
which shall be given in the sole discretion of SSP, which approval may not be
unreasonably withheld. USSC is not permitted to move any Unit without the
express written consent of SSP.
ARTICLE 6
INSPECTION
1. USSC=s Inspection. USSC shall inspect each Unit within seven (7) days
after installation. Unless USSC, within said period of time, gives written
notice to SSP, specifying any defect in or other proper objection to the Unit,
USSC agrees that it shall be presumed conclusively, as between the SSP and USSC,
that (i) USSC has fully inspected and acknowledged that the Unit is in good
condition and repair, (ii) USSC is satisfied as to the condition and repair of
said Unit, and (iii) USSC has accepted the Unit.
2. SSP=s Inspection. SSP shall, at any and all times during regular
business hours, have the right to enter into and on the premises where the Unit
may be located for the purpose of inspecting the same or observing its use. USSC
shall give SSP or cause such to be given to SSP by the hospital where the Unit
is located immediate notice of any attachment or other judicial process
affecting any item of the Unit and shall, whenever requested by SSP, advise SSP
of the exact location of the Unit.
ARTICLE 7
USE
1. Manner of Use. USSC shall use each Unit subject to this Agreement or
cause such Unit to be used in a careful and proper manner and in accordance with
any and all documentation and manuals provided by SSP, and shall comply with all
laws, ordinances, and regulations relating to the possession, use, or
maintenance of such Unit.
2. Markings. If at any time during the time of this Agreement, SSP supplies
USSC with labels, plates, or other markings, stating that the Unit is owned by
SSP, USSC shall affix and keep the same in a prominent place on the Unit.
ARTICLE 8
INITIAL AND ADDITIONAL EQUIPMENT RENT
1. During the Reduced Term as to the Initial Equipment on Schedule 2. USSC
shall be solely responsible for all rental payments due SSP for the Units
leased. Rental payments in the amount of $350 per Unit per month shall be paid
to SSP for the duration of the Reduced Term for each such Unit. Additionally,
USSC shall have the option to subscribe for a service maintenance plan which
provides for the simultaneous exchange of equipment (within 24 hours) in the
event any piece of equipment, its software or any module requires service or
replacement (AHot Swap Maintenance Service@) for which payments in the amount of
$50 per Unit per month shall be due during the Term. In the event Hot Swap
Service is not elected by USSC or in the event USSC fails to make payment for
such service, SSP shall remain responsible for service on such units, but shall
cause such service to be performed within a three (3) business day time period.
Payments shall be made at the principal place of business of SSP on or before
the 1st day of each month of the Reduced Term.
2. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term as
to the Initial Equipment on Schedule 2. USSC will use its best efforts to have
the hospital sites at which a Unit or Units are installed to pay all future
monthly rental charges, including Hot Swap Maintenance Service to SSP. In such
event, USSC may direct such hospitals to make their respective rental payments
to SSP and SSP agrees to accept same as if received from USSC. Rental payments
during the period from the expiration of the Reduced Term through the balance of
the Term for the Units on Schedule 2 shall be equal to $350 per Unit per month
plus $50 per Unit per month for Hot Swap Maintenance Service. Notwithstanding
such provision to accept payment for the benefit of SSP, such acceptance shall
not be deemed a waiver of USSC=s responsibility, and in all USSC shall be solely
responsible for such payments to SSP.
3. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term as
to the Additional Equipment on Schedule 2A et seq. USSC will use its best
efforts to have the hospital sites at which a Unit or Units are installed to pay
all future monthly rental charges, including Hot Swap Maintenance Service to
SSP. In such event, USSC may direct such hospitals to make their respective
rental payments to SSP and SSP agrees to accept same as if received from USSC.
Rental payments during the period from the expiration of the Reduced Term
through the balance of the Term for the Units on Schedule 2A et seq. shall be
(i) $350 per Unit per month plus $50 per Unit per month for Hot Swap Maintenance
Service for all units configured in accordance with Schedule 2 and (ii) at the
current monthly rate and Hot Swap Maintenance Service fee charged by SSP to its
customers for all other configurations of Units. Notwithstanding such provision
to accept payment for the benefit of SSP, such acceptance shall not be deemed a
waiver of USSC=s responsibility, and in all USSC shall be solely responsible for
such payments to SSP.
ARTICLE 9
SECURITY DEPOSIT
1. USSC shall pay SSP a security deposit in the amount of $175 per Unit for
Schedule 2 Units and (i) $175 per Unit for Schedule 2A et seq. Units configured
in accordance with Schedule 2 or (ii) a deposit equal to half of one (1) month
of the current monthly fee for all other configurations of Units in accordance
with Schedule 2A et seq. (as to each Unit, the ASecurity Deposit@ and as to all
of the Units, the ASecurity Deposits@). The Security Deposits shall remain in
the possession, custody and control of SSP for the duration of Reduced Term and
for the duration of the Term.
2. Upon termination at the Reduced Term or the Term, as applicable, SSP
shall have the right to inspect the Units for damage. Provided no damage is
found, except ordinary wear and tear, SSP shall return the Security Deposit to
USSC . Should damage to the Unit be discovered by SSP upon inspection, SSP shall
subtract an amount from the Security Deposit which represents a fair estimate of
the cost of repair as a result of the damage, if repair is possible, and return
the remaining portion of the Security Deposit to USSC, if any. In the event the
Unit cannot be repaired as determined by SSP or should the Security Deposit be
insufficient to cover the expense of repairing the Unit, SSP shall submit a
request for payment to USSC, and USSC shall make prompt payment to SSP of the
amount requested to conduct such repairs or replacement.
ARTICLE 10
SECURITY INTEREST AND LICENSE AGREEMENT
1. During the Term or the Reduced Term, as applicable, SSP shall retain a
security interest in all of the Units subject to this Agreement. USSC agrees to
execute any and all documentation necessary to perfect such security interest,
including but not limited to, any UCC-1 or related document for filing in the
state and county where each Unit is located. In addition, USSC agrees that any
hospital at which a Unit or Units are located, to cause such hospital to execute
any and all documents necessary to perfect SSP=s security interest. In the event
of any approved move of any Unit, USSC shall execute and cause the hospital at
the new location to execute any and all documents or instruments necessary to
perfect SSP=s security interest in the Unit at the new location.
2. During the Term or Reduced Term, as applicable, USSC shall and USSC
shall cause each Location to execute a Site License Agreement in the form
annexed hereto and made a part hereof as Exhibit A. In the event of any approved
move of any Unit, USSC shall execute and cause the hospital at the new location
to execute a Site License Agreement in the form annexed hereto and made a part
hereof as Exhibit A.
ARTICLE 11
INSURANCE AND TAXES
1. Insurance. USSC shall keep all of the Units insured against all risks of
loss or damage from every cause whatsoever for not less than the full
replacement value thereof as determined by SSP. USSC shall carry public
liability and property damage insurance covering the Units. All said insurance
shall be in the form and amount and with companies approved by SSP, and shall be
in joint names of SSP and USSC. USSC shall pay the premiums therefor and shall
deliver said policies, or duplicates thereof, to SSP. Each insurer shall agree,
by endorsement on the policy issued by it or by independent instrument furnished
to SSP, that it will give SSP thirty (30) days written notice before the policy
in question shall be altered or canceled. The proceeds of such insurance, at the
option of SSP, shall be applied:
A. Toward the replacement, restoration, or repair of any damaged or lost
Unit; or
B. Toward payment of USSC=s obligations hereunder. USSC hereby appoints
SSP as USSC=s attorney-in-fact to make claim for, receive payment of, and
execute and endorse all documents, checks, or drafts for loss or damage under
any said insurance policy.
2. Taxes. USSC shall keep all of the Units free and clear of all levies,
liens, and encumbrances and shall pay all license fees, registration fees,
assessments, charges, and taxes which may now or hereafter be imposed on the
leasing, renting, possession, use, or in the event USSC elects to purchase, and
SSP elects to sell, any or all of the Units, on the sale and or ownership of
said Unit, excluding, however, all taxes on or measured by SSP=s ownership and
or net income.
3. Additional Amounts Due SSP. In case of failure of USSC to procure or
maintain said insurance or to pay said fees, assessments, charges, and taxes, as
hereinbefore specified, SSP shall have the right, but shall not be obligated, to
effect such insurance, or pay said fees, assessments, charges, and taxes, as the
case may be repayable to SSP with the next installment of Rent or Additional
Rent, as the case may be.
ARTICLE 12
ADDITIONAL CONTENT PROVIDERS
1. During the Reduced Term, it is expected that additional companies will
seek to promote their products on the Units installed, as additional content
providers. The allowance of additional content providers to do so during and for
the duration of the Reduced Term shall be in the sole discretion of USSC.
2. Provided this Agreement is not terminated at the end of the Reduced
Term, from the expiration of the Reduced Term through the balance of the Term,
SSP agrees to black out those products or companies set forth in Schedule 4,
which schedule is annexed hereto and made a part hereof. As to any other company
or product not listed on Schedule 4 annexed, SSP shall notify in writing USSC of
any additional content providers which SSP wishes to include in any Unit. USSC
shall have five (5) days from the date of such notice to advise SSP in writing
as to whether or not USSC objects to the inclusion of such additional content
provider. In the event USSC notifies SSP, such additional content provider shall
not be included. In the event USSC fails to notify SSP within such five (5) day
period, it shall be deemed that USSC has no objections, and SSP shall be
entitled to include such additional content provider in any Unit.
3. All production fees, monthly fees and modification fees for such
inservice modules for such additional content providers such be bourne by such
providers and shall not be the responsibility of USSC.
4. For all companies who become additional content providers under
subparagraph 1 or 2 of this Article 10, but exclusive of SSP Business, SSP shall
pay to USSC a royalty equal to twenty five percent (25%) of all net monthly
revenues realized from these additional content providers during and for the
duration of the Term or Reduced Term. For purposes of this Agreement, Anet
monthly revenues@ shall mean gross income from sales and monthly fees, less
production fees, modification fees, costs of goods sold, repairs, taxes and out
of pocket expenses.
ARTICLE 13
ALTERATIONS, REPAIRS, DAMAGE AND LOSS
1. Alterations. Without the prior written consent of SSP, USSC shall not
make any alterations, additions, or improvements to any Unit. All additions and
improvements of any kind or nature made to any Unit shall belong to and become
the property of SSP on the termination of this Agreement, with the following
exceptions:
A. SSP shall produce, modify and inservice software (AModules@) for USSC
as outlined herein.
B. Product based Modules produced by SSP for USSC, for which USSC makes
full payment to SSP, shall become the sole property of USSC at the time of
payment. SSP shall retain the right to display USSC Modules in SSP hardware for
the Term or Reduced Term, but shall cease to actively display USSC Modules in
SSP Units upon the termination of this Agreement without the prior written
consent of an authorized representative of USSC. SSP shall always have the right
to use USSC Modules for demonstration, education and development purposes.
C. Product based Modules produced by SSP at the joint expense of SSP and
USSC for their joint use, shall be the joint property of SSP and USSC, and both
shall have all ownership rights in connection with the ownership of such
Modules. All other types of modules shall remain the sole property of SSP.
2. Repairs. The Hot Swap Monthly Maintenance Fee shall cover the expense of
the maintenance and upkeep of the Units including any repairs necessary for the
Term or Reduced Term, so long as all such fees are paid in a timely manner.
Provided however, that this fee shall not include any intentional misuse of any
Unit, nor shall it include any maintenance required as a result of the use of
any Units which is not the intended ordinary use of such equipment.
3. USSC hereby assumes and shall bear the entire risk of loss and damage to
any Unit or any part thereof which shall impair any obligation of USSC under
this Agreement. In the event of loss or damage of any kind to any Unit or part
thereof, USSC shall pay to SSP the cost of placing the same in good repair,
condition, and working order, or in the event such cannot be repaired, the
replacement cost thereof in accordance with the stipulated loss value set forth
herein.
4. Stipulated Loss Value. If any Unit is determined by SSP to be lost,
stolen, destroyed, or damaged beyond repair, USSC shall pay SSP thereof in case
the AStipulated Loss Value@ as set forth in the Schedule 5 which is annexed
hereto and made a part hereof. Upon such payment, this Agreement shall terminate
with respect to such Unit, USSC shall become the owner of such Unit without
warranty, express or implied, with respect to any matter whatsoever and SSP
shall provide USSC with a ▇▇▇▇ of Sale relative to such Unit.
ARTICLE 14
STEERING COMMITTEE
1. Each party to this Agreement shall appoint an equal number of members to
a steering committee (the "Steering Committee"). The Steering Committee shall
oversee Unit installation, operation, maintenance and removal. The Steering
Committee shall have no power to govern or control the actions or inactions of
the parties except as expressly provided by this or any other written Agreement.
The Steering Committee shall take all necessary steps to maintain efficient and
amicable coordination between the parties including the following:
A. Preparation for product installation including site
consideration, review and screening, installation considerations including power
and phone access, determination of the necessary modules to cater to the needs
of the individual site and consultation with the parties.
B. Coordination of training schedules for site personnel,
development of training programs and tools, etc.
C. Site maintenance, including: preparation of data related to Unit
use, adaptation of Unit and Unit modules to the changing needs of site
personnel, Unit maintenance schedules, including general service and maintenance
as well as Unit repair and replacement as necessary.
D. Unit removal, relocation or reconfiguration if necessary and
desirable to the parties.
E. Information update and exchange by and between the parties.
ARTICLE 15
OWNERSHIP AND ASSIGNMENT
1. Ownership. The Units are, and shall at all times be and remain, the sole
and exclusive property of SSP, subject to the provisions contained herein
regarding ownership of Modules produced either jointly or at the sole expense of
USSC. USSC shall have no right, title, or interest therein, except as expressly
set forth in this Agreement.
2. Assignment. Without the prior written consent of SSP, during the Term or
the Additional Term, if any, USSC shall not:
A. Assign, transfer, pledge, or hypothecate this Agreement, any Unit or
any part of it, or any interest in it; or
B. Sublet or lend any Unit or any part of it, or permit any Unit or any
part of it to be used by anyone other than USSC or USSC=s employees, except for
the employees located at the installation site, which site is approved by SSP.
ARTICLE 16
PURCHASE OPTION
Provided this Agreement is not terminated at the end of the Reduced Term,
from the expiration of the Reduced Term through the balance of the Term, if all
rents and any other money due and payable to SSP have been paid in full, USSC
shall have the right and privilege, at its option, to purchase any OASIS Model
1062LP, exclusive of any software, for a price of $8500. This purchase option
shall apply to hardware only. All software which is not either the joint
property of USSC and SSP or is not the sole property of USSC shall remain the
exclusive property of SSP, the use of which will require a license and fee. On
the exercise of this option, SSP shall duly execute and deliver to USSC any and
all documents necessary and proper to effect transfer of ownership of the
equipment to USSC, free and clear of all encumbrances, security interests, or
liens (other than encumbrances, security interests, or liens suffered or
permitted by USSC to become effective thereon). Upon payment by USSC in cash or
certified check of the full amount of the option price and thereupon this
Agreement shall terminate as to such Unit. No further rent shall become due with
respect to such equipment so purchased by USSC. SSP shall provide Hot Swap
Monthly Maintenance, module production and module monthly maintenance and
modification at its current rates if elected by USSC.
ARTICLE 17
Intentionally left blank.
ARTICLE 18
DEFAULT
If USSC with regard to any Unit, module or modification (i) fails to pay
any rent or any other amount due hereunder within ten (10) days after the same
is due and payable, or (ii) if any execution of any other writ of process shall
be issued in any action or proceeding against USSC whereby said equipment may be
seized, taken, or detained, or (iii) if a proceeding in bankruptcy,
receivership, or insolvency shall be instituted by or against USSC, or (iv) if
USSC shall enter into any arrangement or composition with its creditors, or (v)
if USSC, with regard to any Unit or Units, fails to observe, keep, or perform
any other provision of this Agreement required to be observed, kept, or
performed by USSC, SSP shall, if such default shall continue for thirty (30)
days after written notice thereof to USSC, and such default shall not have been
cured within thirty (30) days, have the right to exercise any one or more of the
following remedies:
1. To declare the entire amount of rent and any other monies due hereunder
immediately due and payable as to any or all Units, without notice or demand to
USSC.
2. To ▇▇▇ for and recover all rents and any other payments then accrued or
thereafter accruing, with respect to any or all Units.
3. To take possession of any or all Units, without demand or notice,
wherever the same may be located, without any court order or other process of
law. USSC hereby waives any and all damages occasioned by such taking of
possession.
4. To terminate this Agreement as to any or all Units.
5. To pursue any other remedy at law or in equity available to SSP.
Notwithstanding any repossession, or any other action which SSP may take, USSC
shall be and remain liable for the full performance of all obligations to be
performed by USSC under this Agreement. All such remedies are cumulative, and
may be exercised concurrently or separately at the sole option of SSP. This
provision shall survive the termination of this Agreement.
ARTICLE 19
INTEREST
If USSC fails to pay any part of the rent or any other money due hereunder
to SSP within ten (10) days after the due date thereof, USSC shall pay to SSP
interest on such delinquent payment from the expiration of said ten (10) days
until paid at the rate of seven percent (7%) per annum.
ARTICLE 20
SURRENDER AND TERMINATION
On the expiration of the Term or Reduced Term, or earlier termination of
this Agreement, including any termination on default, with respect to any Unit
or Units, USSC shall forfeit all right to the software and hardware which are
the subject of this Agreement, other than USSC produced modules. At the option
of SSP, USSC shall either:
1. Return the same to SSP in good repair, condition and working order
(ordinary wear and tear resulting from proper use thereof alone excepted) in the
following manner as may be specified by SSP:
A. By delivering such Unit or Units at USSC=s cost and expense to such
place as SSP shall specify, in which case risk of loss remains with USSC until
such time as the Unit or Units are returned to the location specified by SSP; or
B. By loading the Unit or Units at USSC=s cost and expense on board
such carrier as SSP shall specify and shipping the same, freight collect, to the
destination designated by SSP, in which case risk of loss shifts to SSP at the
time USSC delivers the Unit or Units to the specified carrier.
2. Surrender the same to SSP in good repair, condition and working order
(ordinary wear and tear resulting from proper use thereof alone excepted) at the
installation location, allowing SSP adequate time to inspect same, before
releasing USSC from its obligations under the Agreement and returning the
Security Deposit.
ARTICLE 21
Intentionally left blank.
ARTICLE 22
SECURITY AND CONFIDENTIALITY
1. SSP understands and acknowledges that USSC and USSC understands and
acknowledges that SSP operates under the laws, statutes and regulations of
various state and federal agencies, some of which are unique to the
security-sensitive medical industry. Both SSP and USSC shall endeavor, to the
extent permitted by law, make reasonable efforts to comply with the reasonable
written instructions and reasonable written requests of the other regarding
security and confidentiality pertaining to this Agreement, the project plan
agreed by the parties and all other aspects of the relationship between the
parties and the Units (including the hardware and software) and information that
is exchanged, shared or handled by either party to this Agreement.
2. Both parties agree and do hereby agree that all information which could
reasonably be considered "Confidential" by the other will not be distributed to
their employees, affiliates or to the general public, except on a "Need to Know
Basis."
3. For the purposes of this section only, Confidential Information shall
include any non-public information that the disclosing party reasonably
designates as confidential, or which under the circumstances surrounding
disclosure, should reasonably be considered confidential. Confidential
information includes, but is not limited to information relating to a Party's
released or unreleased software and hardware products, business policies and
practices including all tangible and intangible materials containing information
that is not public or not known to the public whether or not it is in written or
printed form or whether it is machine or user readable or not.
ARTICLE 23
PERSONAL PROPERTY
The Units, any attachments, improvements and or modifications thereon are,
and shall at all times be and remain personal property and not deemed a fixture,
notwithstanding that the Units or any part thereof may now be, or hereinafter
become, in any manner affixed or attached to, or embedded in, or permanently
resting on, real property or any building thereon, or attached in any manner to
that which is permanent as by means of cement, plaster, nails, bolts, screws, or
otherwise.
ARTICLE 24
REPRESENTATIONS AND WARRANTIES
1. USSC Representations and Warranties. USSC represents and warrants that
it is duly formed, validly existing and that none of the terms, conditions or
obligations contained herein violate any provision of its articles of
incorporation, bylaws, regulations or statutes. Further, USSC represents and
warrants that the party executing this Agreement on its behalf is fully
empowered to do so and to bind USSC to all of the terms and obligations
contained herein.
2. SSP Representations and Warranties. SSP represents and warrants that it
is duly formed, validly existing and that none of the terms, conditions or
obligations contained herein violate any provision of its articles of
incorporation, bylaws, regulations or statutes. Further, SSP represents and
warrants that the party executing this Agreement on its behalf is fully
empowered to do so and to bind SSP to all of the terms and obligations contained
herein.
3. Survival. The provision contained in this Article 23 shall survive the
termination of this Agreement.
ARTICLE 25
GENERAL PROVISIONS
1. Expenses. If any legal action is required for either party to enforce
any of its rights or remedies hereunder or to enforce any of the terms,
conditions, or provisions hereof, the prevailing party in such action shall be
entitled to recover all costs and expenses of such action, including attorneys
fees, from the other party.
2. Concurrent Remedies. No right or remedy herein conferred on or reserved
to SSP or USSC is exclusive of any other right or remedy herein or by the law or
equity provided or permitted; but each shall be commutative of every other right
or remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise, and may be enforced concurrently therewith or from time to
time.
3. Nonwaiver. No covenant or condition of this Agreement may be waived
except by the written consent of the parties. Forbearance or indulgence by
either party in any regard whatsoever shall not constitute a waiver of the
covenant or condition to be performed by the other party to which the same may
apply, and, until complete performance by the other party of any covenant or
condition, the forbearing or indulging party shall be entitled to invoke any
remedy available to it under this Agreement or by law or in equity despite said
forbearance or indulgence.
4. Entire Agreement. This Agreement constitutes the entire agreement
between SSP and USSC and supersedes any prior understanding or written or oral
agreements between the parties respecting the within subject matter. It shall
not be amended, altered, or changed except by a written agreement signed by the
parties hereto.
5. Notices. Service of all notices under this Agreement shall be sufficient
if given personally, delivered by courier, or mailed, certified receipt, return
receipt requested to the party involved at its respective address set forth
herein, or at such address as such party may provide in writing from time to
time in accordance with this paragraph. Any such notice mailed to such address
shall be effective when delivered. At the time of execution of this Agreement,
and until further written notice is given by either party to the other, notices
shall be sent to:
SSP: Surgical Safety Products, Inc.
SSP Corporate Center
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Mintmire & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
USSC: Legal Department
United States Surgical Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6. Notice of Special Events. USSC shall promptly give notice to SSP of any
of the following occurrences within one week of USSC's knowledge thereof: (i)
any execution of any writ of process shall be issued in any action or proceeding
against any location at which any Unit is located whereby said equipment may be
seized, taken or detained; (ii) a proceeding in bankruptcy, receivership, or
insolvency shall be instituted by or against any location at which any Units is
located; or (iii) the location at which any Unit is located shall enter into any
arrangement or composition with its creditors.
7. Gender; Number. Whenever the context of this Agreement requires, the
masculine gender includes the feminine or neuter, and the singular number
includes the plural. Whenever the word ASSP@ or AUSSC@ is used herein, it shall
include all controlled, controlling or controlled by entities and individuals.
8. Law to Apply. This Agreement shall be construed under and in accordance
with the laws of the State of Florida. The parties agree to the exclusive
jurisdiction of the courts of the State of Florida and designate venue in
Sarasota County, Florida.
9. Parties Bound. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
10. Legal Construction. If any or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision thereof, and this Agreement shall constructed as if
such invalid, illegal, or unenforceable provision had never been contained
herein.
IN WITNESS WHEREOF, the parties hereto executed this Agreement the day and
year first above written.
Surgical Safety Products, Inc. (ASSP@)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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An Authorized Representative
United States Surgical Corporation (AUSSC@)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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An Authorized Representative
Schedule 1
Installation Schedule
Installation # Facility Name Install week of
-------------------------------------------------------------------------
Hospital 1 TBD 11-9-98
Hospital 2 TBD 11-9-98
Hospital 3 TBD 11-16-8
Hospital 4 TBD 11-16-98
Hospital 5 TBD 11-07-98
Hospital 6 TBD 11-07-98
Hospital 7 TBD 11-07-98
Hospital 8 TBD 11-14-98
Hospital 9 TBD 11-14-98
Hospital 10 TBD 11-14-98
Schedule 2
Unit configuration
HARDWARE: Model 1062LP or Equivalent
SOFTWARE: Version 2.x or later
TITLES INCLUDED: Healthcare News and Events
Device Inservices
Culture Awareness
Schedule 3
Production and Modification Fees
PRODUCTION FEES:
Feature: $2,000 per module
Major: $1,500 per module
Basic: $1,000 per module
MODIFICATION FEES: $75 per hour
Schedule 4
Excluded Companies and Products
▇▇▇▇▇▇▇ ▇▇▇▇▇ - Trocars, Laporoscopic stapling devices
Origin - Trocars, Laporoscopic stapling devices, mesh products
Dexcide - Trocars
Core Dynamics - Trocars
Applied Medical - All products
Sophmore Danic - All products
Bard - Hernia mesh products
Genzymen - Trocars, Laporoscopic stapling devices, Mesh products
Atruim Medical - Trocars, Mesh
Ethicon - All products
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ - Review with USS
Schedule 5
Stipulated Loss Value
MODEL 1062LP $8500